TD Bank, N.A. v JMA Realty Holding Corp.

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TD Bank, N.A. v JMA Realty Holding Corp. 2012 NY Slip Op 31280(U) May 1, 2012 Sup Ct, Nassau County Docket Number: 6568/11 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OFNEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice TD BANK , N. A. successor by merger to COMMERCE BANK , N. Plaintiff - against - TRIAL/IAS PART 31 NASSAU COUNTY Index No. : 6568/11 Motion Seq. No. : 02 Motion Date: 11/17/11 JMA REALTY HOLDING CORP. , SHANALI , INC. ESTATE OF AZAM INSHANALL Y a/k/a ASAM INSHANALL Y , NEW YORK STATE DEPARTMENT OF TAXTION AND FINANCE , COUNTY OF NASSAU -and- JOHN DOES " I" - " 10" AND XYZ CORPORATION 1" - " 10" , said names being fictitious , it being the intention of plaintiff to designate any and all occupants tenants , persons or corporations , if any, having or claiming an interest in or lien upon the premises being foreclosed herein Defendants. The followinfl papers have been read on this motion: Papers Numbered Notice of Motion. Affirmations. Affidavit and Exhibits and Memorandum of Law Affirmation in Opposition. Affidavit in Opposition and Exhibits Replv Affrmation [* 2] Upon the foregoing papers , it is ordered that the motion is decided as follows: Plaintiff moves , pursuant to CPLR 305 and 3025 , for an order amending the caption in this action to delete defendants John Does " 1- 1 0" and XYZ Corporation " 1- 1 O. ' as paries; and moves , pursuant to CPLR 3212 , for an order granting it sumar judgment against defendants JMA Realty Holding Corp. (" JMA" ), Shanali , Inc. (" Shanali" ) and the Estate of Azam Inshanally a/a Asam Inshanally (" Estate ofInshanally ); and moves for the appointment of a Referee to compute and report the amount due plaintiff for principal and interest. Defendant the Estate ofInshanally opposes the motion. No other opposition was submitted. On or about July 27 2006 , defendants JMA and Shanali obtained a loan in the amount of 200 000. 00 through the U. S. Small Business Association. The loan , evidenced by a promissory note dated July 27 2006 , was personally guaranteed by Azam Inshanally who died intestate on Januar 15 2007 , prior to commencement of this action. In this action , plaintiff seeks to foreclose two mortgages: a commercial mortgage security agreement and assignment ofleases and rents , executed as of July 27 2006 , by Commerce Ban , N. A. and decedent Azam Inshanally, as president of defendant JMA encumbering properties known as 158 and 170 Merrick Road , Lynbrook , New York (referred to as the " Hempstead Mortgage " in plaintiff s papers) and a commercial mortgage for residential propert executed as of July 27 2006 by Azam Inshanally, individually encumbering propert known as 399 Emerson Place , Valley Stream , New York. Plaintiff also seeks to recover a deficiency judgment against defendants JMA , Shanali and the Estate ofInshanally. According to the loan documents , the borrowers (defendants JMA and Shanali) and the individual guarantor , were obligated to repay the loan in monthly installments of principal and interest with a balloon payment of all outstanding principal , accrued interest and other applicable fees and expenses due and payable on July 27 2031 the maturity date. Beginning on or about April 28 , 2010 , and thereafter , defendants JMA and Shanali defaulted under the terms of the Note by failng to make the required payments. [* 3] By letter dated May 13 2010 , defendants JMA and Shanali were advised that " if full payment of the debt is not received by the deadline set forth above , TD Ban intends to avail itself of any and all remedies under the law or in equity, including commencement of litigation against all responsible paries , including and/or the foreclosure of the July 27 2006 Commercial Mortgages. In moving for sumar judgment in this foreclosure action , plaintiff has established its case as a matter of law with respect to the " Hempstead Mortgage " through the production of the mortgage , the unpaid Note and evidence of defendants JMA , Shanali and the Estate of Inshanally s default. v. See Rossrock Fund IL L.P. Osborne 82 AD. 3d 737 918 N. Y.S.2d 514 (2d Dept. 2011). In opposition , defendants JMA , Shanali and the Estate of Inshanally have bona fide failed to raise a triable issue of fact as to the existence of a defense to the Complaint such as waiver , estoppel , bad faith , fraud or oppressive or unconscionable conduct on the par the plaintiff. See Capstone Bus. Credit, LLC v. Imperia Family Realty, LLC 70 AD. 3d of 882 895 N. Y.S. 2d 199 (2d Dept. 2010). According to the Affidavit of decedent's wife , Azam Inshanally died unexpectedly of a brain aneursm. While she was unable to continue ruing her husband' s business and making the payments on the " Hempstead Mortgage " she was able to refinance the Valley Stream mortgage on the family s residence under the Home Affordable Refinance Program and is currently up-to- date on the revised payment schedule. She fuher states that she wishes to transfer the Lynbrook commercial property to plaintiff in exchange for vacatur of the foreclosure action. There being no defense offered vis-v-vis plaintiff' s motion for summar judgment of foreclosure on the " Hempstead Mortgage " the motion must be granted. With respect to the deceased mortgagor , Azam Inshanally, it is well established that no action may be commenced against a person subsequent to his or her death and prior to the appointment of a personal representative of his or her Estate. See EPTL ~ 11- 1; Marte [* 4] Graber 2d 71 (1 sl Dept. 2008); 58 AD.3d 1 , 867 N. 436 , 807 N. Y.S.2d 595 (2d Dept. 2005); AD.2d 558 , 755 N. Jordan v. 23 AD. City of New York, Dime Savings Bank of New York FSB v. Luna , 302 S.2d 300 (2d Dept. 2003). Here , the instant action was commenced subsequent to decedent' s death and after the appointment of his wife as Administratrix of his Estate. As such , the action should have been properly commenced against the Administratrix as representative of decedent's Estate. According to the Affidavit of Service , the defendant Estate of Inshanally was purortedly served with the Sumons and Complaint and Notice of Pendency pursuant to CPLR ~ 308(4) on May 9 , 2011. While some cours have held that the personal representative of the estate of a deceased mortgagor , who died intestate , is not a necessar pary to a mortgage foreclosure action , and that such action may be commenced or continued against the distributees of an intestate mortgagor (see Citimortgage, Inc. v. Balbi 22 Misc.3d 1102(A), 875 N. Y.S. 2d 819 (Sup. Ct. Suffolk County, 2009)), here plaintiff has improperly attempted to sue defendant Estate of Inshanally. Since this is a case in which the Complaint seeks a deficiency judgment against the Estate of (see Financial Inshanally, the need to join the Estate of a deceased mortgagor is not obviated. Freedom Senior Funding Corp. v. Rose 64 A. D. 3d 539 883 N. Y.S. 2d 546 (2d Dept. 2009)), and, as noted , plaintiff is required to proceed against the personal representation of decedent's Estate. Although decedent's wife , Monika Inshanally, was appointed Administratrix of his Estate on Februar 16 2006 , plaintiff has erroneously named the Estate of Azam Inshanally a/k/a Asam Inshanally as defendant rather than the duly appointed representative of the Estate. The Estate of Azam Inshanally a/a Asam Inshanally is not a proper par to this action as it is not a legal entity. An action for or against the decedent's Estate must be brought against the Administratrix of his Estate in her representative capacity. 33 AD. 3d 587 822 N. Y.S. 2d 150 (2d Dept. 2006); Misc.2d 1036 545 N. See Grosso 100 West 72 v. Estate of Gershenson Street Assoc. S.2d 901 (Civ. Ct. City of New York, 1989). The v. Murphy, 144 purorted service of process on the defendant Estate of Azam Inshanally a/a Asam Inshanally of was a nullity. As [* 5] such , the Cour lacks jurisdiction over said Estate. Accordingly, plaintiffs motion , pursuant to CPLR ~ 3212 , for a order granting sumar judgment of foreclosure against defendants JMA and Shanali on the Hempstead Mortgage is hereby GRANTED. And it is fuher ORDERED the plaintiffs motion , pursuant to CPLR ~~ 305 and 3025 , for an order amending the caption in this action to delete defendants John Does " 10" and XYZ Corporation " 10" as paries is hereby GRANTED. And it is fuher ORDERED that the caption of this action , as amended , shall read as follows: TD BANK , N. A. successor by merger to COMMERCE BANK, N. Plaintiff - against - JMA REALTY HOLDING CORP. , SHANALI , INC. ESTATE OF AZAM INSHANALL Y a/a ASAM INSHANALL Y , NEW YORK STATE DEPARTMENT OF TAXTION AND FINANCE and COUNTY OF NASSAU Defendants. ORDERED the plaintiffs motion for the appointment of a Referee to compute and report the amount due plaintiff as and for principal and interest vis-a-vis the Hempstead Mortgage is also hereby GRANTED. Accordingly it is ORDERED Fiduciar # 140397 , that this action be and the same hereby is referred to Dominic Viloni , Esq. having an office at 80 Brook Street , Garden City, New York 11530 telephone number (516) 741- 2644 , as Referee , to ascertain and compute the amount due to plaintiff herein , except for attorney s fees , for principal , interest and other disbursements advanced as provided for in the Hempstead Mortgage upon which this action was brought and to [* 6] report to the Court with all convenient speed. And it is fuher ORDERED that , pursuant to CPLR ~ 8003(a), in the discretion of the Court , a fee of $350. 00 shall be paid to the Referee for the computation stage and upon the fiing of his report. And it is fuher ORDERED that , by accepting this appointment , the Referee appointed herein is subject to the requirements of Rule 36. 2(c) of the Chief Judge , and , if the Referee is disqualified ITom receiving an appointment pursuant to the provision of that Rule , the Referee shall notify the Appointing Judge forthwith. And it is fuher ORDERED that , by accepting this appointment , the Referee certifies that he is in compliance with Par 36 Rules of the Chief Judge (22 NYCRR Par 36), including, but not limited to , Section 36. 2(c) (" Disqualifications ITom appointment" ) and Section 36.2(d) Limitations on appointments based upon compensation ). And it is fuher ORDERED that the Referee is prohibited from accepting or retaining any fuds for himself or paying funds to himself without compliance with Par 36 of the Rules of the Chief Judge. And it is further ORDERED that , on fiing the Referee s report , plaintiff may move for confirmation of said report and for judgment of foreclosure and sale as prayed for in the Complaint. The branch of plaintiffs of Azam Inshanally a/a Asam motion for sumary judgment of foreclosure against the Estate Inshanally is hereby DENIED and plaintiffs claims for foreclosure against defendant Estate of Azam Inshanally a/k/a Asam Inshanally vis-a-vis the Valley Stream mortgage which encumbers the family residence located at 399 Emerson Place Valley Stream , New York are DISMISSED without prejudice. Since Monika Inshanally, as Administratrix of decedent's Estate was not properly named [* 7] as par to the action , the Complaint fails to assert a viable cause of action against the Estate. To the extent that Adminstratrix Monika Inshanally asserts that plaintiff has improperly failed to name decedent's two minor children as defendants , they are not necessar paries. The Cour notes that where the administratrix is named as a par defendant , heirs are not necessar paries to a mortgage foreclosure action. AD. 3d 746 853 N. See Glass a deceased mortgagor v. Estate of Gold S.2d 159 (2d Dept. 2008). This constitutes the Decision and Order of this Cour. Dated: Mineola, New York ENTFDCD MAY May 1 , 2012 03 2012 NASAU"'uv COUNTY CLERK' OFflCr:

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